of nations for our guidance. Every person who is within the state, and to deliver him into the custody The opinion of the court as to the validity of But how charged? The law of Congress has the cause of detention appearing by this return, answered this question. In order, says the Chief was delivered by chief justice Savage as follows: Justice of New York, to give the Governor of this “It is," said he, "there expressly recited—1. that state jurisdiction in such a case, three things are the Governor of Rhode Island has demanded that requisite. 1. The fugitive must be demanded by John L. Clark be arrested and delivered up as a the executive of the state from which he fled. 2. fugitive from justice; 2. that a copy of an affidavit A copy of an indictment found, or an affidavit made was presented charging Clark with certain acts, before a magistrate, charging the fugitive with which the governor of Rhode Island certifies are having committed the crime. 3. Such copy of the made criminal by the laws of that state; 3. that indictment or affidavit must be certified as authen- the affidavit is certified by the Governor of Rhode tic by the executive. If these pre-requisites have been complied with, then the warrant of the Governor properly issues and the prisoner is legally restrained of his liberty.† In Clark's case, a habeas corpus was awarded, directed to the persons having him in custody, commanding them to bring him before the Chief Justice and to exhibit the cause of his detention. The return upon the writ of habeas corpus, showed that he was detained in custody by virtue of a warrant issued by the Governor of the state of New York, in the following words: Island to be duly authenticated.-Here then is a literal compliance with the constitution and laws of the United States; and the Governor of New York had full power and authority to issue his warrant to direct Clark to be arrested, and delivered over to the agent of the state of Rhode Island.” Clark made an affidavit to the following effect: "that according to the information and belief of this deponent, and as he is advised by counsel and believes to be true, this deponent has not committed any act or thing recited in said warrant; and that he is not guilty of any act or thing which is a "Enos T. Throop, Governor of the state of New crime or made criminal under and by the laws of York, to the sheriff of the city and county of New the state of Rhode Island, and which is made the York, and the sheriffs, constables, and other peace pretence for said warrant and the arrest of this deofficers of the several counties in the said state: ponent; and this deponent wholly denies the guilt Whereas, it has been represented to me by the Go- as recited in said warrant. This deponent expressly vernor of the state of Rhode Island, that John L. denies that he has fraudulently abstracted from the Clark, late of Providence, in the said state, has Burrilville bank of Rhode Island money, notes and been guilty of frauds in abstracting from the Bur- bank bills while president of said bank, or at any rilville bank, in that state, money, notes, and bank time, or in any manner which is made criminal by bills, while president of said bank, in a fraudulent the laws of that state. On the contrary thereof, manner, which said acts are made criminal by the this deponent says that he has not at any time ablaws of that state; and that he has fled from justice stracted or taken from said bank money, notes and in that state, and has taken refuge in the state of bank bills, other than what has been paid to him by New York; and said Governor of Rhode Island the cashier or other officer of that bank, and upon has, in pursuance of the constitution and laws of vouchers or discounted paper entered in course of the United States, demanded of me that I should business upon the books of the bank, and sanctioncause the said John L. Clark to be arrested, and ed by the direction or some part thereof, or comdelivered into the custody of Henry G. Munford, mittees, or persons duly authorised in the premises." sheriff of the county of Providence, who is duly authorized to receive him into his custody, and convey him back to the said state of Rhode Island: And, whereas, the said representation and demand is accompanied by an affidavit, taken before a justice of the peace of the said state of Rhode Island, whereby the said John L. Clark is charged with the said crime; which affidavit is certified by the said Governor of Rhode Island to be duly authenticated You are therefore required to arrest the said John L. Clark, wherever he may be found + Id. 219. *9 Wend. 218, 219. Chief Justice Savage delivered the opinion of the court as to the effect of this affidavit, as follows: "The prisoner has made an affidavit denying all criminality or fraud in relation to the Burrilville bank which are charged against him in the affidavit presented to the Governor of this state. But whether he is guilty or not is not the question to be decided here. It is whether he has been properly charged with guilt, according to the constitution and the act of Congress. The prisoner does not deny any fact set forth in the warrant upon which he has been arrested. It is not denied that the Governor of Rhode Island has demanded him the said Colley a certain negro man slave named as a fugitive from justice. It is not denied that an | Isaac, the property of said Colley." And this affiaffidavit charging him with criminality was pre- davit was certified as authentic by the executive of sented to the Governor of New York; nor is it de- Virginia. It thereupon became the duty of the nied that the Governor of Rhode Island has certi-executive of New York, according to the constitufied that that affidavit is properly authenticated. tion and laws of the United States, and according These are the material facts. Governor Throop also to the decisions of the supreme court of the does not assert the prisoner's guilt, but that he had state of New York, to cause the persons so demanbefore him such evidence as the law directed to ded to be arrested and delivered to the proper agent authorize the issuing his warrant. Whether the of the executive of Virginia. prisoner is guilty or innocent is not the question This the Governor of New York has declined before us; nor is any judicial tribunal in this state doing. In a communication of the 16th of Sepcharged with that inquiry. By the constitution, tember 1839, to the executive of Virginia, he takes the following ground: full faith and credit are to be given in all the states to the judicial proceedings of each state. When "I beg leave to state most respectfully, that, adsuch proceedings have been had in one state as mitting the affidavit to be sufficient in form and ought to put any individual within it upon his trial, substance to charge the defendants with the crime and those proceedings are duly authenticated, full of stealing a negro slave from his master in the faith and credit shall be given to them in every state of Virginia, as defined by the laws of that other state. If such person flee to another state, state, yet in my opinion, the offence is not within it is not necessary to repeat in such state to which the meaning of the Constitution of the United he has filed the initiatory proceedings which have States. The words employed in the constitution, already been had, but he is to be sent back to be treason, felony or other crime,' are indeed very tried where the offence is charged to have been comprehensive. It has long been conceded that committed to have the proceedings consummated citizens of the state upon which the requisition is where they were begun.” made, are liable to be surrendered, as well as citizens of the state making the demand; and it is fur7. Duty of Executive Officers in relation to fu- ther regarded as settled, that the discretion of the gitive criminals.-All executive officers of the executive in making the demand is unlimited, while states are bound by oath or affirmation to support the executive upon whom it is made has no legal the Constitution of the United States. Art. 6, sec. 2. right to refuse compliance, if the offence charged This constitution and the laws of the United is an act of treason, felony or other crime,' withStates made in pursuance thereof, are the supreme in the meaning of the constitution. Can any state law of the land, and the judges in every state are at its pleasure declare an act to be treason, felony bound thereby; any thing in the constitution or or other crime, and thus bring it within the constilaws of any state to the contrary notwithstanding. tutional provision? I confess that such does not Art. 6, sec. 2. seem to me the proper construction of the constiThe supreme law of the land has been so ex-tution. After due consideration, I am of opinion pounded by the judges of the supreme court of the that the provision applies only to those acts which, state of New York as to give to it full effect. A if committed within the jurisdiction of the state in very different exposition has been made by the executive of that state. We premise that by the laws of Virginia, any person who shall steal a slave is guilty of felony, and upon conviction thereof is to undergo a confinement in the penitentiary for a period not less than three nor more than eight years. 1 R. C. 1819, p. 427-8, sec. 29. which the person accused is found, would be treasonable, felonious or criminal, by the laws of that state." The correspondence which we are now considering, furnishes evidence that the Governor of the state of New York is an able man; and we do not consider it any reproach to him, that he is not perfectly familiar with the decisions of the supreme The executive authority of Virginia, in July last, court of his own state upon questions of constitudemanded three persons of the executive authority tional law. But it is cause of regret that he did of New York, as fugitives from justice, to wit; not, before affirming so important a proposition as Peter Johnson, Edward Smith and Isaac Gansey. that contained in the last sentence above quoted, There was produced to the executive of New York, consult with his attorney general. Had he done an affidavit made before a magistrate of Virginia so, he must have learnt from him that the supreme by one John G. Colley of Norfolk borough. The court of New York had pronounced a different deaffidavit was dated the 22d of July 1839, and cision, in Clark's case. charged "that on or about the 15th inst. Peter The Governor of New York proceeds as folJohnson, Edward Smith and Isaac Gansey, now lows: "I do not question the constitutional right of attached to the schooner Robert Center, at present a state to make such a penal code as it shall deem in New York, did feloniously steal and take from necessary or expedient, nor do I claim that citizens of another state shall be exempted from arrest, the citizens of another state, and acts which the trial and punishment, in the state adopting such code, policy and habits of one state may lead its legislahowever different its enactments may be from those ture to punish as felony, must be considered of that existing in their own state. The true question is, heinous character in another state for certain purwhether the state of which they are citizens, is un- poses, while for all other purposes they would be der a constitutional obligation to surrender its citi- regarded only as violations of moral law. In some zens to be carried to the offended state, and there of the states of the Union, adultery is made a felony; tried for offences unknown to the laws of their own in another, the being the father of an illegitimate state. I believe the right to demand, and the reci- child is made a crime; and in another, marriage procal obligation to surrender fugitives from justice, without license or other formalities is penal. To between sovereign and independent nations, as de-admit the principle that violations of these and simifined by the law of nations, includes only those cases in which the acts constituting the offence charged are recognized by the universal law of all civilized countries." lar laws, which are in their character mere municipal regulations, adapted to the policy of a particular community, are "felonies" and "crimes," within the meaning of the constitution, would involve the most serious consequences, by imposing obligations which it would be impossible to execute. It is evident there must be some limit to the description of crimes meant by the constitution; and that which I have applied in to the provision, and at the same time preserve the right of exclusive legislation to each state over persons confessedly within its jurisdiction, while it preserves that harmony which is so essential to our mutual interest." Chancellor Kent has expressed the opinion, that those crimes "which strike deeply at the rights of property and are inconsistent with the safety and harmony of commercial intercourse, come within the mischief to be prevented, and within the neces- this instance seems to me to give full and fair scope sity as well as the equity of the remedy. If larceny may be committed and the fugitive protected, why not compound larceny, as burglary and robbery-and why not forgery and arson? They are all equally invasions of the rights of property." This language is used by the chancellor when discussing the propriety of delivering up one charged with having committed a theft in a foreign state.* And all can see, that it applies with increased force to a crime which strikes deeply at the rights of property in the south, is inconsistent with the harmony of intercourse between citizens of the northern and southern states, and tends to impair the permanence of the Union and the safety of the general government. Such a crime comes within the mischief which the Constitution of the United States designed to prevent, and the remedy should be extended to it when the terms that are employed are abundantly sufficient to embrace it. The Governor of New York, after stating that the obligation to surrender under the law of nations, includes only those cases in which the acts constituting the offence charged are recognized by the universal law of all civilized countries, proceeds as follows: "I think it is also well understood, that the object of the constitutional provision in question, was to recognize and establish this principle in the mutual relations of the states, as independent, equal and sovereign communities. As they could form no treaties between themselves, it was necessarily engrafted in the constitution. I cannot doubt that this construction is just. Civil liberty would be very imperfectly secured in any country, whose government was bound to surrender its citizens to be tried and condemned in a foreign jurisdiction, for acts not prohibited by its own laws. The principle, if adopted, would virtually extend the legislation of a state beyond its own territory and over * Washburn's case: 4 Johns. ch. rep. 113. It must in candor be acknowledged that there is a good deal of force in some of these observations; and that there is difficulty in holding the term crime, in the constitution, as synonymous with offence. But there is no difficulty at all in establishing, that, when the Governor of New York takes the ground that he will not deliver up a person charged in another state with a crime, unless the fact charged be recognized as an offence by the laws of all civilized countries, and would if committed in New York be an offence according to the laws of that state, he takes ground which is wholly untenable, according to the decision of the supreme court of his own state in Clark's case, and sets up a new principle, entirely different from that which was acted on by his predecessor, Governor Throop. By the laws of Virginia, if any officer of public trust in the commonwealth, or any officer or director of any bank chartered by the commonwealth, shall embezzle, or fraudulently convert to his use, any sum of money, bank note, bill, check, bond or other security or facility placed under his care or management, by virtue of his office, or place, the person so offending is guilty of felony, and, upon conviction thereof, is to be sentenced to imprisonment in the public jail and penitentiary house, for a term not less than three nor more than ten years. Sess. acts, 1819-20, p. 19, ch. 22, sec. 2. Though the act thus made felony by the laws of Virginia, was by the common law of England only a breach of trust and not punishable criminally, a person charged in Virginia with this offence, who should flee from justice and be found in another state, would, according to governor Throop and the supreme court of New York, be delivered up "to the state having jurisdiction of the crime." But ac- or criminal. It might further be conceded, that the cording to governor Seward, the fact charged not being recognized as a crime by the universal law of all civilized countries, there would be no surrender. We have no hesitation in declaring, that it seems to us it would be a violation of the federal constitution not to make the surrender in such a case. "However the point may be," says Mr. Justice Story, "as to foreign nations, it cannot be questioned that it is of vital importance to the public administration of criminal justice, and the security of the respective states, that criminals who have committed crimes therein, should not find an asylum in other states, but should be surrendered up for trial and punishment. It is a power most salutary in its general operation, by discouraging crimes and cutting off the chances of escape from punishment. It will promote harmony and good feeling among the states; and it will increase the general sense of the blessings of the national government. It will moreover give strength to a great moral duty, which neighboring states especially owe to each other, by elevating the policy of the mutual suppression of crimes into a legal obligation. Hitherto it has proved as useful in practice as it is unexceptionable in its character." act of stealing a slave could not be deemed a common law felony. And still the conclusion, that the act charged in the affidavit is not a felony or crime, within the meaning of the federal constitution, is one which cannot be sustained, if the precedent of governor Throop be correct, and the opinion of the supreme court of New York be a sound exposition of the constitutional obligation to surrender. Nay more, it is not necessary to call in aid that precedent and that opinion to the whole extent that they authorize. The conclusion that the fact charged in the affidavit is not a felony, or crime, within the meaning of the federal constitution, is untenable upon another ground. In a communication of the 4th of October 1839, from the Lieutenant Governor of Virginia to the Governor of New York, this language is used-" Is it true that the offence committed by Peter Johnson, Edward Smith and Isaac Gansey, is not recognized as criminal by the universal law of all civilized countries'? They are charged with feloniously stealing from John G. Colley, a citizen of this state, property which could not have been worth less than six or seven hundred dollars. And I understand stealing to be recognized as crime by all laws, human and Governor Seward thus proceeds: "The offence Divine." In Governor Seward's reply of the 24th charged in the affidavit before me, is not understood of October 1839, he says "It is freely admitted to be that of kidnapping a person, by which he was that the argument would be at an end, if it were as deprived of his liberty, or held in duress, or suffer- clear that one human being may be the property of ed personal wrong, or injustice, but it is understood another as it is that stealing is a crime." It might to mean the taking of a slave, considered as prop-not be going too far to say, that stealing property is erty, from the owner. If I am incorrect in this sup-recognized as crime by all laws, and that any state position, the vagueness and uncertainty of the affidavit must excuse my error. But I think there can be no controversy on this point. I need not inform you, sir, that there is no law of this state which recognizes slavery, no statute which admits that one man can be the property of another, or that one man can be stolen from another. On the other hand, our constitution and laws abolish slavery in every form. The act charged in the affidavit, if it had been committed in this state, would not contravene any statute; nor is it necessary to inform you that the common law, which is in force in this state when not abrogated by statute, does not recognize slavery, nor make the act of which the parties are accused in this case felonious or criminal." may make that property which she pleases. But here the question is not between Virginia, whose laws recognize slaves as property, and a foreign state, whose laws recognize no such property. The question is very different. It is between Virginia, under whose laws slaves are property, and New York, who has made a compact with Virginia recognizing this very kind of property. New York has said to Virginia, that if she will come into the Union with her, a constitution shall be adopted for the government of the states, by which New York will agree that, no matter what laws or regulations New York may herself adopt to abolish slavery within her borders, persons held as slaves in Virginia, under her laws, who may escape into New York, The decisions of the supreme court of New York, shall not be discharged from slavery; but the right of show that until a very recent period, the laws of property of the owners shall be respected in New that state recognized slavery, and her statutes ad-York, and the slaves shall be delivered up on claim mitted that one man might be the property of anoNew York has further agreed by ther. Such property was the subject of sale, and the same constitution, that a person charged in Virginia with a crime, who shall flee from justice and be found in New York, shall be delivered up to be reIt may however be conceded, that the act charg-moved to Virginia. After a union of the states has ed in the affidavit, if it had been committed in New York, would not have contravened any existing statute of that state, making such an act felonious, the owner's rights were protected by the laws. + Story on Const. vol. 3, p. 676. VOL. VI-14 of the owners. been formed, based upon the provisions contained in this constitution, a person charged in Virginia with stealing property, flees from justice and is found in New York; Virginia demands the fugitive, and New York refuses to deliver him up. New York, while so refusing, admits that if the person is charged with a crime he ought to be delivered up: and she admits that stealing property is a crime. But the ground of her refusal is that nothing was stolen except a person held as a slave, and that a person held as a slave is not property by the laws of New York. We trust that it is not yet come to this, that New York shall be told in vain that she herself has said, persons held in Virginia as slaves shall be recognized as property. We trust it is not too late to remind her, that she has so said in a Constitution which she agreed should be her supreme law, and which she declared the members of her state legislature, and all her executive and judicial officers, should be solemnly pledged to support. C. R. Con Robinson DEATH IS WISDOM. [For the information of critics, we would mention that the au- Stern is the lesson that the dying teach, Oh! Wisdom, where are all thy triumphs, where- If low ambition mark thee as her toy, Quench one undying drop of that sulphureous wave? *The Rev. Wm. McSherry, President of Georgetown College. D. C. who died on the night of the 17th Dec. 1939. It might seem necessary to apologize for the introduction of this and the two following verses, with so little apparent connection; but on this point the writer, with all due respect to the reader, feels indifferent, actuated as he was, with the desire alone of rendering a feeble though sincere tribute to the memory of one, of whom it may be justly said, that "his death was met without fear, and his life passed without reproach." Could'st thou but tell the wonders of thy tale! Can'st thou, fond nature, scorn those fixed eyes, LYCIDAS. MORAL AND MENTAL PORTRAITS.* WILLIAM CULLEN BRYANT. In While all his countrymen read and admire Bryant as a poet, only a very few know him as a man. Retiring in his habits, modest in his deportment and unostentatious in all his actions, he shuns the public gaze and seldom mingles in society. the company of some chosen friends, in the solitude of his study, or, in manly exercises in the country, he employs the hours not necessarily devoted to his daily occupation. When chance, or circumstance, places him among strangers, he is reserved and taciturn. He never leads conversation, but occasionally, in a subdued tone of voice, takes an unpretending part. To disputation he may listen, but in that he never indulges. Free from affectation and envy-simple in manner and sincere in heart-he never undervalues his contemporaries. Although not prone to praise without an honest conviction that it is deserved, he is ever willing to award merit its full measure of applause-yet the standard by which he judges, is loftier than common men may appreciate. His mind is active and retentive, deeply imbued with tender fancies, delicate sensibilities, and far-reaching thoughts. He is a ripe scholar in five languages of modern Europe, as his translations attest; as well as in those of Greece and Rome; and deeply read in *The above moral and mental portrait of a great poet and a worthy man, cannot fail to interest our readers. It is from the pen of one who has the means of being well informed as to his subject, and who has promised us sketches of other distinguished Americans. We thank him for his valuable contribution, and we think that the public will join us in doing so. We will specify that this will be followed by portraits of Forrest and Halleck.-[Ed. Messenger. |